Google business listing used by court in determining jurisdiction

This post is in: October 5, 2017

New Brunswick company registered in Ontario and listed as having an address in the province loses bid to move litigation to New Brunswick

In a motion to move litigation from Ontario to New Brunswick, the Master in 2383003 Ontario Inc. v. Big Lobster Seafood Incorporated cited a business listing in Google with an Ontario address to support keeping the action in Ontario.

The underlying action related to two agreements, one relating to transportation services and the second to the construction of a cold storage facility in New Brunswick. The plaintiff, an Ontario corporation, brought its action in the province and the defendant made a motion to have it stayed based on lack of jurisdiction. The defendant, Big Lobster Seafood Incorporated (“BL”) is incorporated under Ontario corporations law and had an address in the province, but said it has entirely moved its operations to New Brunswick. The parties disputed where the contract was actually negotiated and, not surprisingly given the motion, there were no choice of law or choice of forum clauses in the contracts.

The Master hearing the motion referred to the four presumptive connecting factors, any one of which is sufficient to give jurisdiction to Ontario:

[18] The following is the non-exhaustive list of 4 presumptive connecting factors:

  1. the defendant is domiciled or resident in Ontario;
  2. the defendant is carrying on business in Ontario;
  3. the tort was committed in Ontario; and
  4. the contract connected with the dispute was made in Ontario.

[19] The existence of 1 presumptive factor is sufficient to establish jurisdiction. Analysis for jurisdiction determination does not require the depth of a Rule 21 motion or consideration of the merits; sufficient particularly in the pleadings is sufficient. [citations omitted]

The Court determined that a number of the factors were met, in particular examining how the defendant has presented itself to support the finding that the defendant is domiciled or resident in Ontario.

[24] Even though BL submits that it has no connection to Ontario, it has chosen to maintain an Ontario corporate registration with its registered office at the same address since 2013 and throughout the entire time that it did business with HS. BL has also chosen to register extra-provincially in New Brunswick and did so only 10 weeks before it entered into the Transportation Agreement with HS.

[25] The public, other corporations and HS are entitled to rely on BL’s Ontario registration. Based on what BL represented, what HS knew and the information available when it did business with BL, it was reasonable for HS to conclude that BL was an Ontario corporation with processing operations located in New Brunswick. While BL is not denying that its registered Ontario office is in Mississauga it is now downplaying and resiling from this registration in an attempt to deny HS the right to sue it in Ontario. BL has also chosen not to amend or correct its Ontario contact information that, over 2.5 years later, still appears prominently in response to a Google search.

[26] BL cannot arrange its affairs in this manner, hold itself out as an Ontario corporation, and then selectively pick and choose when it wishes to reap the benefits of an Ontario registration and address and when it wishes to honour or avoid the obligations associated with it. The fact that BL chose to register extra-provincially and moved its head office to New Brunswick does not change the fact that its Ontario registration and address have not changed since 2013. I conclude that BL is domiciled or resident in Ontario and therefore this presumptive connecting factor applies.

The Master also determined that the defendant carries on business in Ontario and that the contract was made in Ontario as the signed agreement was received back in that province, having been emailed there from New Brunswick:

[33] Further, the law of contract provides that when acceptance of a contract is delivered by email, as here, the contract is made in the jurisdiction where the email communicating acceptance is received, in this case, Ontario. Therefore, even if I fully accept BL’s evidence that the Agreements were drafted and signed in Ontario by HS, emailed to New Brunswick, signed in New Brunswick by BL and then emailed back to HS in Ontario, this supports HS’ position that the Agreements were made in Ontario. Based on the above considerations and analysis, in my view, it is also likely that the Agreements were made in Ontario such that this presumptive connecting factor also applies. [citation omitted]

As a result of this analysis, the defendant’s motion failed.